EPA Rolls Back Wetlands Protections to Comply with Supreme Court’s Sackett v. EPA Decision

September 26, 2023

As KJK has previously covered, earlier this year, the Supreme Court of the United States (SCOTUS) delivered a landmark ruling on the reach of the protections afforded by the Clean Water Act (CWA) in Sacket v. EPA. In that case, while all agree the CWA provides some protection to the nation’s waterways and wetlands, it has long been up to courts to determine how far those protections go.

SCOTUS’s Changing Perspective

Previously, the SCOTUS had narrowly adopted a sweeping view of the CWA’s protections and the Environmental Protection Agency’s (EPA) power to implement those protections. With Sackett, the Court reversed course and adopted a far more limited view of those protections and power.

The “Continuous Surface Connection” Test

Under the Sackett ruling, the so-called “continuous surface connection” test applies. That is, to be considered Water of the United States (WOTUS), the water needs continuous surface connection to traditionally accepted WOTUS, such as rivers, lakes, and oceans. Ephemeral and temporary bodies of water, which includes many types of wetlands, would not pass such a test.

EPA’s Rollback in Response to Sackett

In August, complying with the Sackett decision, the EPA announced a roll back of its regulations over much of the nation’s wetlands. The announced revisions apply the Sackett test across the board, including to tributaries and wetlands. In implementing this change, the EPA indicated its disappointment in the Sackett ruling, but stated it had no choice but to comply.

Impact on Landowners and Developers

Hailed as a victory for landowners and developers who had long had to grapple with the presence of potential waterways and wetlands covered by the CWA on their property, the Sackett decision and the rollback of EPA regulations may help offer a clearer path forward for many when it comes to purchasing, developing, and selling land. Although some interest groups argue the rollback does not go far enough.

Environmental Concerns and Criticisms

Conversely, environmental interest groups have expressed dismay and worry that the EPA no longer has the power to protect what many consider critical natural resources.

Seeking Guidance and Assistance

Whether you’re interested in learning about how this change affects plans for development, or plans for conservation, the KJK’s real estate practice group is here to help. Contact Matt Viola (MTV@kjk.com; 216.736.7253), or Jim Scherer at (JJS@kjk.com; 216.736.7296) to learn more.